建立第三人缔约过失责任制度的构想

发布时间：2018-04-02 08:13

本文选题：缔约过失责任　切入点：第三人　出处：《浙江大学》2017年硕士论文

【摘要】：第三人缔约过失责任是指缔约当事人因第三人的错误致使合同未缔结或者合同归于无效的第三人的责任。第三人缔约过失责任是德国通过司法判例发展出的一项制度,我国并没有该项制度。在德国法中,第三人缔约过失责任是通过扩充合同的责任保护范围来予以解决,而我国民法与德国有着千丝万缕的联系,第三人缔约过失责任是否需要引入我国值得深思,需要审慎论证。本文第一部分介绍了德国第三人缔约过失责任的缘起,德国是通过司法判例渐进发展出第三人缔约过失责任的,透过种种案型,我们明确了德国第三人缔约过失责任的第三人的范围和调整案型,从而为后文的论证提供了材料。第二部分的前半部分指出学界也有反对适用第三人缔约过失责任之声,提出完全可以适用侵权责任和附保护第三人合同解决,并指出第三人缔约过失责任本身的不足之处。后半部分笔者随后逐一对这些见解进行分析,指出德国法上第三人缔约过失责任在我国完全有适用的必要,完全可以类型化后作为我国侵权法中一项特殊的侵权责任,并说明了其在我国适用会带来立法上、理论上和实务上的积极意义。本文第三部分,通过分别对第三人缔约过失责任制度可与第三人欺诈、履行辅助人和代理人责任等相关制度协调的分析,论证了第三人缔约过失责任在我国存在的独特意义。在我国民法典尚未制定完成的情况下,笔者认为现行法中也可以涵射此种制度,在未来民法典中应该将第三人缔约过失责任规定于侵权法中,并应将信赖原则也一并纳入其中以统摄相关法律制度。
[Abstract]:The liability of the third party for contracting negligence is the liability of the third party who has not concluded the contract or the contract is invalid because of the mistake of the third party. The third party's fault in concluding the contract is a system developed in Germany through judicial jurisprudence. There is no such system in our country. In German law, the liability of the third party for fault in contract is solved by extending the scope of liability protection of the contract, and the civil law of our country is inextricably linked with Germany. The first part of this paper introduces the origin of the third party's fault liability in Germany. Germany has gradually developed the liability of the third party for fault in contracting through judicial jurisprudence. Through various cases, we have made clear the scope of the liability of the third party of the third party and the adjustment case type of the liability of the third party in Germany. The first part of the second part points out that the academic circles also object to the application of the third party's liability for fault in concluding the contract, and puts forward that the tort liability and the third party contract with protection can be completely applied. Then the author analyzes these views one by one, and points out that the liability of the third party in German law is fully applicable in our country. It can be classified as a special tort liability in the tort law of our country, and explains that its application in our country will bring positive significance in legislation, theory and practice. Through the analysis of the coordination between the third party's fault liability system and the third party's fraud, the performance of the assistant and the agent's liability, etc., the third party's fault liability system can be coordinated with the third party's fraud. This paper demonstrates the unique significance of the liability of the third party for fault in contracting in our country. When the civil code of our country has not been completed, the author thinks that this system can also be included in the current law. In the future civil code, the liability of the third party for contracting negligence should be stipulated in the tort law, and the principle of trust should also be included in it in order to dominate the relevant legal system.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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